ORDERS:
ORDER
I. Statement of the Case
Dr. Nancy P. Norris (Norris) filed an application with the Office of Ocean and Coastal Resource
Management (OCRM) for a permit to construct access to an unnamed and man-made tributary of
Wappoo Creek. Access is sought by means of a private fixed pier and walkway at 1980 Minott
Street, Charleston, South Carolina. On November 8, 1995, OCRM granted the requested permit.
By Amended Notice of Transmittal dated November 28, 1995, the Administrative Law Judge
Division (ALJD) received notice that John W. Trott (Trott), Anne Jenkins Sawyers (Sawyers),
Ronald Motley (Motley), Mrs. Henry C. Robertson (Robertson), Gray and Margaret Robertson,
Emily M. Simons (Simons) and Virginia Jantzen (Jantzen) all opposed the permit and sought a
contested case hearing pursuant to S.C. Code Ann. § 48-39-150 and § 1-23-310, et seq. (Rev.
1987 & Supp. 1995).
After hearing the evidence and considering the applicable law, I conclude the permit must be
denied. Any issues raised in the proceedings or hearing of this case but not addressed in this
Order are deemed denied. Further, the filing of a motion for reconsideration is not a prerequisite
to any party filing a notice of appeal of this Order.
II. Issues
1. Is the granting of the dock permit improper due to failure to provide access to the first
navigable waterway?
2. Is the granting of the dock permit improper due to OCRM not considering the impact of the
dock on the view of the marsh by adjacent property owners?
III. Analysis
A. First Navigable Waterway
1. Positions of Parties:
Petitioners assert the dock permit is improper since it does not provide access to the closest
navigable waterway. OCRM asserts the waterway in question is not navigable, and thus, cannot
be a consideration.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
1. Norris seeks access to an unnamed and man-made tributary of Wappoo Creek by construction
of a private fixed pier and walkway at 1980 Minott Street, Charleston, South Carolina.
2. Trott and Sawyer own the properties at 150 and 152 Woodland Shores Road which properties
are adjacent to and on the western side of the Norris property.
3. Motley owns property abutting the marsh and is to the east of Norris.
4. Robertson owns property abutting the marsh and is to the north of Norris.
5. Gray and Margaret Robertson of 2005 Minott Street own property at the corner of Woodland
Shores and Minott Street which is behind and to the south of Norris.
6. Simons owns property abutting the marsh which is west of Norris.
7. Jantzen is the daughter of Raigh Smoak Robertson who is the owner of property at 402 Old
Point Road.
8. A waterway as a drainage ditch was created in the mid 1960's for mosquito control purposes
with such waterway extending from Lake Shore Drive through the marsh area to Wappoo Creek
on the Intercoastal Waterway.
9. The ditch is the waterway upon which Norris has received a permit to construct a dock.
10. At the proposed permit site, the ditch is approximately 20 feet wide.
11. The distance to the ditch at the proposed permit site from the Norris property is
approximately 250 to 300 feet when measured without crossing any extended property lines.
12. A second waterway was also created in the mid 1960's for mosquito control and was
constructed as a "lateral canal or secondary canal" joining the ditch. The canal originates in the
marsh area between Sawyer's lot and Norris' lot at a now demolished dam.
13. A portion of the demolished dam abuts Norris' property.
14. The canal crosses the marsh and joins the ditch in a perpendicular fashion.
15. The distance to the canal from Norris' lot is between 60 and 100 feet and requires the crossing
of one extended property line.
16. The width of the canal is at least 4 feet at low tide and as much as 10 feet at high tide.
17. OCRM has previously allowed construction to cross extended property lines in this marsh.
18. The crossing of the extended property line by Norris would not create material harm to the
policies of the Act since such would result in a shorter dock structure.
19. A shorter dock is less intrusive to the marsh.
20. A shorter dock is consistent with the policy of utilizing a dock that is the most reasonable in
size.
21. The canal is the closest waterway to Norris and is the first waterway.
22. The canal is a navigable waterway.
23. Members of the public have used the canal for pleasure boating.
24. Pleasure boating can occur in the canal since the canal is filled with water for at least two
hours on either side of high tide.
25. The canal consists of a channel.
26. The channel both fills and empties with the ebb and flow of the tide.
27. The channel has a significant change in grade which allows for the movement of water in and
out of the old dam through the canal and ditch and then out to Wappoo Creek on the Intercoastal
Waterway.
28. The canal consists of a channel accompanied by a significant change in grade.
3. Discussion
a. Introduction
The tests used by OCRM in evaluating permit applications must be formalized by regulation. S.C.
Code Ann. § 48-39-130(B) (Supp. 1995); Captain's Quarters v. S.C. Coastal Council, 306 S.C.
488, 413 S.E.2d 13 (1991). Once expressed in a valid regulation, those criteria that are
mandatory must be applied since a state agency cannot disregard its own regulations. Triska v.
Department of Health and Environmental Control, 292 S.C. 190, 355 S.E.2d 531 (1987) . In
particular as to S.C. Code Regs. 30-12 (Supp. 1995), the failure of OCRM to apply the
mandatory provisions of that regulation prevents OCRM from granting the permit requested. See
Concerned Citizens v. Coastal Council, 310 S.C. 267, 423 S.E.2d 134 (1992) ("[w]ithout this
requisite showing [of the S.C. Code Regs. 30-12 requirement of a demand for a marina, OCRM]
has no legal ability to grant the permit.").
In the instant case, OCRM's regulations state that a dock "must extend to the first navigable creek
with a defined channel as evidenced by a significant change in grade with the surrounding marsh."
S.C. Code Regs. 30-12(A)(2)(n). Here, the issues are whether S.C. Code Regs. 30-12(A)(2)(n) is
mandatory, what is the first waterway, and whether such waterway is navigable with a defined
channel.
b. Mandatory Regulation
While "must" may sometimes be construed as discretionary, its ordinary meaning of mandatory is
followed unless such a meaning is improper from a reading of the whole instrument in which the
word is used. 64 C.J.S. Must (1950). In the instant case, "must" means mandatory since S.C.
Code Regs. 30-12 employs other words such as "may" and "should" and "encouraged" when
discretion is to be exercised. For example, S.C. Code Regs. 30-12(A)(2)(b) states that docks
"should" use the least environmentally damaging alignment and thus allows OCRM to exercise
discretion to grant a dock whose alignment is not the least environmentally damaging. To the
same effect, see S.C. Code Regs. 30-12(A)(2)(e), where OCRM "may" consider alternative
alignments "when appropriate." Likewise, when permissive, as opposed to mandatory, actions are
allowed under the regulation, the drafters used language such as developers are "encouraged" to
develop joint-use or community docks. Obviously, the drafters of the regulations knew how to
impose mandatory actions and how to make an action permissive. Accordingly, "must" as used in
S.C. Code Regs. 30-12(A)(2)(n) means mandatory.
c. First Waterway
Since the provisions of S.C. Code Regs. 30-12(A)(2)(n) are mandatory, the issue requires
identification of the "first" waterway. Two waterways must be considered. The first addressed
here is a waterway created in the mid 1960's for mosquito control purposes. Plaintiff's Exhibit 38
identifies the waterway as the "Drainage Ditch" (ditch) which extends from Lake Shore Drive
through the marsh area to Wappoo Creek on the Intercoastal Waterway. The ditch is the
waterway upon which Norris has received a permit to construct a dock. At the permit site, the
ditch is approximately 20 feet in width and the distance to the ditch from the Norris property is
approximately 250 to 300 feet. A second waterway was also created in the mid 1960's for
mosquito control and during the hearing was referred to as a "lateral canal or secondary canal"
(canal). The canal is depicted on Plaintiff's Exhibit 38 with its origin in the marsh area between
Sawyers' lot and Norris' lot at a now demolished dam with a portion of the dam abutting Norris'
property. The canal cuts through the marsh and joins the ditch in a somewhat perpendicular line.
The distance to the canal from Norris' lot is between 60 and 100 feet with the width of the creek
being at least 4 feet at low tide and up to 10 feet at high tide.
"First" is commonly defined as being before all others and as being the initial unit in order of
arrangement as to place. 36A C.J.S. First (1961). In deciding when a waterway is "first," the
criteria is the shortest distance from Norris' property to the waterway where distance is measured
consistent with existing regulations. In the instant case the ditch is reached at a distance of 250 to
300 feet when measured within Norris' extended property lines. The distance to the canal is 60 to
100 feet but requires the crossing of one extended property line. The crossing of an extended
property line is not forbidden in determining where to construct a dock since S.C. Code Regs.
30-12(A)(2)(p) allows constructing across such lines "where there is no material harm to the
policies of the Act."
Crossing extended lines in this marsh is not detrimental to the Act. First, OCRM has already
determined that crossing extended lines in this marsh is not detrimental to the policies of the Act
since a dock permit to an adjacent property owner (Dr. Ross) was issued and he was allowed to
construct across an extended property line. Second, the crossing of the extended line by Norris
does not create material harm to the policies of the Act since such allows for a shorter dock
consistent with the regulation's requirement that the size of the dock must be limited to that which
is reasonable. S.C. Code Regs. 30-12-(A)(2)(c). A shorter dock is less intrusive in the marsh and
thus is consistent with utilizing a dock that is more reasonable in size than a longer dock.
Accordingly, the canal is the closest waterway and is thus first within the meaning of S.C. Code
Regs. 30-12(A)(2)(n).
d. Navigability and Defined Channel
The canal is a navigable waterway. A waterway is navigable if it has the capacity for "valuable
floatage." This requirement is satisfied where the only use is by pleasure boats. State ex rel.
Medlock v. S.C. Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986). The artificial nature of
the waterway does not prevent it from being navigable especially where it has been used by the
general public. State ex rel. Lyon v. Columbia Water Power Co., 82 S.C. 181, 63 S.E. 884
(1909). Finally, the fact the waterway cannot sustain traffic at all times is not controlling since a
waterway is navigable so long as it is accessible at the "ordinary stage" of the water. Hughes v.
Nelson, 303 S.E.2d 24, 303 S.C. 102 (Ct. App. 1990).
The evidence confirms the canal is navigable. Two witnesses testified they have used the canal for
pleasure boating. Pleasure boating can occur since the canal is filled with water at least two hours
on either side of high tide. The evidence demonstrates the canal is at least four feet wide at low
tide and as much as ten feet wide at high tide. Only one witness stated the canal was not
navigable. An OCRM witness, who admittedly had not been in the canal with a boat, testified his
observations showed a four foot wide mudflat and not a navigable channel. However, even the
OCRM witness admitted the canal was navigable further down from its origin near the demolished
dam. Accordingly, considering all the testimony and the photographs of the canal, I find the
waterway to be navigable.
As to the change in grade for the canal channel, the photographs show the canal at high and low
tide with a clear channel visible. Such photos demonstrate the canal does in fact fill and empty
with the tide and demonstrates a significant change in grade. Further, the canal was built as a
drainage ditch and was designed to have a significant change in grade in order to move water in
and out of the old dam through the canal and ditch and then out to Wappoo Creek. There is no
persuasive testimony indicating that the canal does not accomplish the purpose for which it was
constructed. Accordingly, I am convinced the canal waterway demonstrates a channel
accompanied by a significant change in grade sufficient to meet the requirements of S.C. Code
Regs. 30-12(A)(2)(n).
4. Conclusions of Law
Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of
law:
1. The tests used by OCRM in evaluating permit applications must be formalized by regulation.
S.C. Code Ann. § 48-39-130(B) (Supp. 1995); Captain's Quarters v. S.C. Coastal Council, 306
S.C. 488, 413 S.E.2d 13 (1991).
2. Mandatory criteria of valid regulations must be applied since a state agency cannot disregard its
own regulations. See Triska v. Department of Health and Environmental Control, 292 S.C.
190, 355 S.E.2d 531 (1987).
3. The failure of OCRM to apply a mandatory provision of S.C. Code Regs. 30-12 prevents
OCRM from granting a permit. See Concerned Citizens v. Coastal Council, 310 S.C. 267, 423
S.E.2d 134 (1992) ("[w]ithout this requisite showing [of S.C. Code Regs. 30-12 requirement of a
demand for a marina, OCRM] has no legal ability to grant the permit.").
4. A dock "must extend to the first navigable creek with a defined channel as evidenced by a
significant change in grade with the surrounding marsh." S.C. Code Regs. 30-12(A)(2)(n)(Supp.
1995).
5. "First" is commonly defined as being before all others and as being the initial unit in order of
arrangement as to place. 36A C.J.S. First (1961).
6. A waterway is "first" if it is the shortest distance from the applicant's property with the distance
measured consistent with existing regulations. S.C. Code Regs. 30-12(A)(2)(n) and (p).
7. The crossing of an extended property line in measuring distance is not prohibited "where there
is no material harm to the policies of the Act" in allowing constructing across such lines. S.C.
Code Regs. 30-12(A)(2)(p).
8. Crossing extended lines in this marsh is not detrimental to the Act.
9. Crossing of an extended property line by Norris does not create material harm to the policies of
the Act since such allows for a shorter dock consistent with the regulation's requirement that the
size of the dock must be limited to that which is reasonable. S.C. Code Regs. 30-12-(A)(2)(c).
10. A shorter dock is less intrusive in the marsh and thus is consistent with utilizing a dock that is
more reasonable in size than a longer dock. S.C. Code Regs. 30-12-(A)(2)(c).
11. The canal is the closest waterway and is thus first within the meaning of S.C. Code Regs.
30-12(A)(2)(n).
12. A waterway is navigable if it has the capacity for "valuable floatage." This requirement is
satisfied where the only use is by pleasure boats. State ex rel. Medlock v. S.C. Coastal Council,
289 S.C. 445, 346 S.E.2d 716 (1986).
13. The artificial nature of the structure does not prevent the structure from being navigable
especially where it has been used by the general public. State ex rel. Lyon v. Columbia Water
Power Co., 82 S.C. 181, 63 S.E. 884 (1909).
14. The fact the waterway cannot sustain traffic at all times is not controlling since a waterway is
navigable so long as it is accessible at the "ordinary stage" of the water. Hughes v. Nelson, 303
S.E.2d 24, 303 S.C. 102, (Ct. App. 1990).
15. The canal is navigable.
16. The canal waterway has a channel accompanied by a significant change in grade with such
configuration sufficient to meet the requirements of S.C. Code Regs. 30-12(A)(2)(n).
B. Lack of Consideration For View
1. Positions of Parties:
The Petitioners assert the permit is improper since OCRM gave no consideration to the loss of
view resulting from the permit to construct a 300 foot walkway and fixed pier. Accordingly, the
petitioners assert OCRM failed to consider the adverse impact on the value and enjoyment of the
marsh by the adjacent property owners. OCRM asserts it has no duty to consider the impact of a
dock upon the view of the adjacent owners.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
1. In granting the permit, OCRM gave no consideration to the impact of a dock structure on the
view of the adjacent land owners.
2. In granting permits, OCRM has in the past denied requests to place a roof on a dock since the
dock roof may detract from the view of the marsh.
3. The property identified on Plaintiff's Exhibit 38 as "marshland" is public trust property.
4. The dock structure lessens the enjoyment of the marshland by the adjacent owners by
diminishing their view of the marshland and water.
3. Discussion
OCRM has statutory and regulatory parameters for its decisions on docks. OCRM is directed to
"base its determination on the individual merits of each application, the policies specified in S.C.
Code Ann. §§ 48-39-20 and 48-39-30 and be guided by the ... general considerations [listed in
S.C. Code Ann. § 48-39-150]." S.C. Code Ann. § 48-39-150 (Supp. 1995). Further, additional
parameters are set by regulations under S.C. Code Regs. 30-11 and 30-12.
The issue is not what weight should be given to the view factor. Instead, the issue is whether
OCRM may ignore the impact the presence of a dock will have upon the view of the marsh or
water by the adjacent residents. In the instant case, the facts demonstrate OCRM did not consider
the view of the adjacent owners. OCRM's witness testified that OCRM did not consider the
neighbor's view since to do so would require OCRM to make judgments on the beauty of an area.
OCRM asserts it cannot make such a judgment since "beauty is in the eye of the beholder" and
OCRM has no ability to make such discernments. Further, OCRM argues that neither common
law nor statute grants the right to a view and thus OCRM is not allowed to consider that which
the law has not granted. I disagree with OCRM's position.
a. Mandatory Consideration
S.C. Code Regs. 30-11(B)(10) states OCRM "will be guided by" several considerations. While
other meanings can be applied, "will" in its common understanding is used to convey certainty and
carries the mandatory sense of "must." 94 C.J.S. Will (1956). Thus, it is mandatory for OCRM to
consider the guidelines listed in § 48-39-150(A) and Regs. 30-11(B).
b. Duty To Consider View
Here, the guideline in dispute is that OCRM must consider "[t]he extent to which the proposed
use could affect the value and enjoyment of adjacent owners." The language begs the asking of
the question, "The adjacent owners' value and enjoyment of what?" Certainly, it cannot literally
mean the impact upon the value and enjoyment of the owners themselves (the ordinary meaning of
the words used in a statute will be rejected when to accept such would lead to a result so plainly
absurd that it could not possibly have been intended, State ex rel. McLeod v. Montgomery, 244
S.C. 308, 314, 136 S.E.2d 778, 782 (1964); a court will interpret a statute so as to promote
legislative intent and to escape absurd results. See Kiriakides v. United Artists Communications,
Inc., 312 S.C. 271, 440 S.E. 2d 364 (1994)).
Here, there are at least three potential interpretations of § 48-39-150(A)(10)(Supp. 1995).
OCRM's interpretation is that its consideration must be limited to the effect of the dock on the
adjacent owners' value and enjoyment of their own private property. The Petitioners'
interpretation is that OCRM must consider the effect upon the adjacent owners' value and
enjoyment of the marsh as public trust property (property below the high water mark is state
owned and is part of the public trust, State v. Hardee, 259 S.C. 535, 193 S.E.2d 497 (1972)).
While not explicitly advanced by the Petitioners, a more encompassing interpretation is to
measure the effect upon the value and enjoyment of the private property as well as considering the
value and enjoyment of the public property.
An ambiguous statute requires statutory construction (if the terms of a statute are susceptible of
more than one interpretation, statutory construction must be employed to discern the intent of the
legislature, Southeastern Fire Ins. Co. v. S.C. Tax Comm'n, 253 S.C. 407, 171 S.E.2d 355
(1969)). The proper interpretation of an ambiguous statute is that which carries out the purpose
of the Act (the primary rule of statutory construction is to ascertain and give effect to the
legislature's intent or purpose as expressed in the statute, Green v. Thornton, 265 S.C. 436, 219
S.E.2d 827 (1975)). Here, the purpose of the Coastal Zone Management Act "is to protect the
quality of the coastal environment and to promote the economic and social improvement of the
coastal zone and all of the people of the State." S.C. Code Ann. § 48-39-30 (Supp. 1995). The
purpose of promoting the social improvement of the area for "all of the people of the State" is
furthered by at least considering the enjoyment of the public lands. To limit the statute to a
consideration of only private lands focuses the statute on individual rights contrary to the intent of
the Act to focus on the public lands of the State. Accordingly, S.C. Code Ann. § 48-39-150
(A)(10) requires OCRM to consider the impact of the dock on the adjacent owner's view of the
marsh and water.
I note that the construction of a statute by an agency charged with its administration will be
accorded most respectful consideration and will not be overruled absent compelling reasons.
Dunton v. S.C. Board of Examiners in Optometry, 291 S.C. 221, 353 S.E.2d 132 (1987). Here,
at least four reasons are compelling sufficiently to reject OCRM's position. .
First, there is no sound basis for OCRM's position that it is incapable of determining when a dock
structure impairs one's enjoyment of a view of the marsh. As the testimony confirmed, OCRM
already determines when a dock roof may detract from the view of the marsh. In a similar
fashion, OCRM can devise an analysis that considers relevant factors as to view.
Second, the perceived inability to perform a task assigned by the General Assembly is not a
sufficient reason to ignore that task. An administrative agency does not have discretionary power
to decline to perform a statutory function even when the agency deems the function unduly
burdensome. 73 C.J.S. Public Administrative Law and Procedure §63 (1983). OCRM must
comply with the dictates of the statute.
Third, OCRM's position is based upon a misperception of the law. OCRM asserts that since a
private individual acquires no right to a view, OCRM has no duty to consider the view of
adjoining landowners. OCRM fails to acknowledge the exceptions to the general rule that a
landowner has no right to a view over adjoining land. A view may be preserved by an agreement
or a statute. See 2 C.J.S. Adjoining Landowners § 69 (1972) (a landowner has no right to the
view over adjoining land unless there is a statute or agreement granting such.) In accord with
this position, South Carolina law holds that a property owner does not acquire an easement that
provides an unobstructed ocean view, breeze, light or air over adjoining property. Schroeder v
O'Neill, 179 S.C. 310, 184 S.E. 679 (1936); Hill v. The Beach Co. et al., 279 S.C. 313, 306
S.E.2d 604 (1983). In the same vein, however, South Carolina law recognizes the right of private
parties to grant a view when such is accomplished by agreement. See Marshall v. Columbia & E.
C. Electric St. Ry. Co, et. al., 73 S.C. 241, 53 S.E. 417 (1906) (an easement by agreement in
property dedicated to public use was created in purchaser where grantor sold to purchaser a lot
abutting the public property and the subsequent sale by grantor of lots within the public property
could not defeat the easement in the original purchaser.). Further, and more specific to the instant
case, the General Assembly by statute may permit private use of public trust property under
whatever conditions and terms it believes will improve the public trust or at least will not
substantially impair the trust property and waters. 73B C.J.S. Public Lands § 178 (1983). To
interpret § 48-39-150(A)(10) in the manner suggested by OCRM is to assume the legislature's
powers to regulate public land is bound by the limitations affecting private ownership. Such an
interpretation is incorrect.
Fourth, OCRM is governed in part by the requirements of the Coastal Zone Management
Program (Management Program). See §48-39-80 (Supp. 1995) (OCRM shall develop a
comprehensive coastal management program and enforce and administer that program). Under
the Management Program, Goals and Objectives are identified at page III-1. Objective 3 requires
OCRM "to protect and sustain the unique character of life on the coast that is reflected in its
cultural, historical, archeological, and aesthetic values." (Emphasis added). An objective which
requires consideration of aesthetics cannot be squared with OCRM's refusal to even consider the
impact a dock will have upon the view of the public trust property. Again, the issue is not what
weight OCRM must give to this consideration but rather whether OCRM may ignore such a
factor. OCRM may not ignore that which the General Assembly has directed it to consider.(1)
4. Conclusions of Law
Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of
law:
1. OCRM bases its dock permit determinations on the individual merits of each application,
considers the policies specified in S.C. Code Ann. §§ 48-39-20 and 48-39-30, will be guided by
the general considerations listed in S.C. Code Ann. § 48-39-150, and will be guided by S.C. Code
Regs. 30.11, S.C. Code Ann. § 48-39-150 (Supp. 1995) and S.C. Code Regs. 30-11.
2. "Will" in its common understanding is used to convey certainty and carries the mandatory sense
of "must." 94 C.J.S. Will (1956).
3. It is mandatory for OCRM to consider the guidelines listed in § 48-39-150(A) and Regs.
30-11(B).
4. OCRM must consider "[t]he extent to which the proposed use could affect the value and
enjoyment of adjacent owners." § 48-39-150(A)(10)
5. The ordinary meaning of the words used in a statute will be rejected when to accept such
would lead to a result so plainly absurd that it could not possibly have been intended, State ex rel.
McLeod v. Montgomery, 244 S.C. 308, 314, 136 S.E.2d 778, 782 (1964);. SeeKiriakides v.
United Artists Communications, Inc., 312 S.C. 271, 440 S.E. 2d 364 (1994).
6. An ambiguous statute requires statutory construction. Southeastern Fire Ins. Co. v. S.C. Tax
Comm'n, 253 S.C. 407, 171 S.E.2d 355 (1969).
7. The proper interpretation of an ambiguous statute is that which carries out the purpose of the
Act. Green v. Thornton, 265 S.C. 436, 219 S.E.2d 827 (1975).
8. The purpose of the Act is to protect the quality of the coastal environment and to promote the
economic and social improvement of the coastal zone and all of the people of the State. §
48-39-30 (Supp. 1995).
9. The purpose of the Act is best furthered by allowing for a consideration of the enjoyment of the
public lands.
10. Property below the high water mark is state owned and is part of the public trust. State v.
Hardee, 259 S.C. 535, 193 S.E.2d 497 (1972).
11. S.C. Code Ann. § 48-39-150(A)(10) requires OCRM to consider the impact of a dock permit
on the adjacent owner's view of the marsh and water.
12. To limit the statute to a consideration of only enjoyment of private lands focuses the statute
on the enjoyment of private property rights contrary to the intent of the Act to focus on the
enjoyment of public lands of the State.
13. The construction of a statute by an agency charged with its administration will be accorded
most respectful consideration and will not be overruled absent compelling reasons. Dunton v.
S.C. Board of Examiners in Optometry, 291 S.C. 221, 353 S.E.2d 132 (1987).
14. A compelling reason not to follow OCRM's interpretation is there is no sound basis for
OCRM's position that it is incapable of determining when a dock structure impairs one's
enjoyment of a view of the marsh
15. A compelling reason not to follow OCRM's interpretation is that the perceived inability to
perform a task assigned by the General Assembly is not a sufficient reason to ignore that task
since an administrative agency does not have discretionary power to decline to perform a
statutory function even when the agency deems the function unduly burdensome. 73 C.J.S. Public
Administrative Law and Procedure §63 (1983).
16. A compelling reason not to follow OCRM's interpretation is that OCRM's position is not a
correct statement of the law since it does not allow for recognized exceptions and since it
erroneously concludes the State is bound by rights limiting private parties.
17. The generally accepted position is that a landowner has no right to a view over adjoining land
unless there is either an agreement to the contrary or a statute to the contrary. See 2 C.J.S.
Adjoining Landowners § 69 (1972).
18. South Carolina law holds that a property owner does not acquire an easement that provides
an unobstructed ocean view, breeze, light or air. Schroeder v O'Neill, 179 S.C. 310, 184 S.E.
679 (1936); Hill v. The Beach Co. et al., 279 S.C. 313, 306 S.E.2d 604 (1983).
19. However, South Carolina law recognizes the right of private parties to grant a view when
such is accomplished by agreement. See Marshall v. Columbia & E. C. Electric St. Ry. Co, et.
al., 73 S.C. 241, 53 S.E. 417 (1906).
20. More specifically, the General Assembly has the authority to direct an agency to consider the
impact on view when the matter in dispute concerns permitting private use of public trust
property since the State may permit private use of public trust property under whatever conditions
and terms it believes will improve the public trust or at least will not substantially impair the trust
property and waters. 73B C.J.S. Public Lands § 178 (1983).
21. OCRM's interpretation of S.C. Code Ann. § 48-39-150(A)(10) incorrectly assumes the
legislature's powers to regulate public land is bound by the limitations affecting private ownership.
22. A compelling reason not to follow OCRM's interpretation is that OCRM is governed in part
by the requirements of the Coastal Zone Management Program (Management Program). S.C.
Code Ann. §48-39-80 (Supp. 1995)
23. Objective 3 of the Management Program, at page III-1 directs OCRM "to protect and sustain
the unique character of life on the coast that is reflected in its cultural, historical, archeological,
and aesthetic values." (Emphasis added).
24. OCRM's refusal to consider the impact upon view resulting from a dock permit is contrary to
the Management Program's direction to consider aesthetics.
25. OCRM must give consideration to the impact upon the view of the public trust property
caused by the granting of a dock permit, and OCRM's failure to consider the view results in an
improperly granted permit.
IV. ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, the following ORDER is
issued:
The permit granted by OCRM is improper in that the permit allows a dock at a location other than
the first navigable stream and further fails to give any consideration to the view of the public trust
lands enjoyed by the adjacent owners. Accordingly, the dock and walkway must be removed as
unpermitted structures.
IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
This 31st day of May, 1996
_______________
Fn.1. Prior decisions of the ALJD have not been confronted with the issue of whether OCRM
may ignore the impact of a dock upon the view of the marsh and water. Rather, prior ALJD
decisions have held that, when considered with other factors, the impact of the loss of a view was
not a sufficient basis upon which to deny a permit. This is the first case in which OCRM has
made it plain that OCRM, as a matter of policy, refuses to give any consideration to the impact of
a dock upon the view of the public trust property. |